Hastings Women’s Law Journal
Volume 5 | Issue 2
Article 4
6-1-1994
Surfacing Gender: Re-Engraving Crimes Against
Women in Humanitarian Law
Rhonda Copleon
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Rhonda Copleon, Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law , 5 Hastings Women's L. R. 243 (1994).
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Surfacing Gender: Re-Engraving Crimes Against
Women in Humanitarian Law
Rhonda Copelon *
Introduction
Historically, the rape of women in war has drawn occasional and shortlived international attention. Most of the time rape has been invisible, or
has come to light as part of the competing diplomacies of war, illustrating
the viciousness of the conqueror or the innocence of the conquered. When
war is done, it is comfortably cabined as a mere inevitable "by-product,"
a matter of indiscipline, of soldiers revved up by war, needy, and briefly
"out of control."
Military histories rarely refer to rape, and military tribunals rarely either
charge or sanction it. This is true even where open, mass and systematic
rape and forced prostitution have been thought to shock the conscience of
the world. In the mid-1970s, an estimated 200,000 Bengali women were
raped during the war of independence from Pakistan yet, in the end,
amnesty was quietly traded for independence. 1 The maintenance of
concentration camp brothels for the rape of Jewish and Aryan women as
well as rape in the course of conquest did not figure in the proceedings
against high-level Nazis before the International Military Tribunal at
* Rhonda Copelon is a professor of law and the director of the International Women's
Human Rights Law Clinic (IWHR) at the City University of New York School of Law.
This article originally appeared as "Surfacing Gender: Reconceptualizing Crimes Against
Women in Time of War" in Mass Rape: The War Against Women in Bosnia-Herzegovina
(University of Nebraska Press, Alexandra Stiglmayer ed., 1994). Credit for extensive
research into the historical and current understanding of war crimes and crimes against
humanity is due to Krishna Stark and Ethan Taubes, 1992-1993 IWHR interns. Had there
been more time to develop this earlier piece, we should have been co-authors. I also
appreciate Marilyn Young's comments on the draft as well as the on-going collaboration
with Jennifer Green, and conversations with Felice Gaer, Vesna Kesic, Guadelupe Leon,
Celina Romany, Indai Lourdes Sajor, Sara Sharett, Ann Snitow, and Dorothy Thomas,
among others.
1. See SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN, AND RAPE 78-86
(1975).
.
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Nuremberg,2 just as the mass rape of German women by Allied soldiers
went largely unredressed. 3 The response, however, to the "rape of
Nanking," which refers to the brutal taking of Nanjing by Japanese soldiers
through mass killings, public beheadings, looting, and rape of approximately 20,000 women in the first month, was unusual. 4 Rape was
explicitly charged against the Japanese commanders and it was discussed
in the judgment of the International Military Tribunal in Tokyo.5 But the
Japanese Army's alternative to open mass rape - the massive industrialization of sexual slavery on the battlefield - was a closely guarded secret.
Only recently, the survivors from among at least 200,000 Korean, Filipino,
Chinese and Dutch/Indonesian women kidnapped and detained to serve as
"comfort women" to the Japanese army have begun to tell their stories and
demand redress. 6
The fact that the rape of women in the wars in the former Yugoslavia
captured world attention provides no guarantee that it will not also
disappear from history, or survive, at best, as an exceptional case. The
apparent uniqueness of the rape directed overwhelmingly against
Bosnian-Muslim women as part of a genocidal campaign of "ethnic
cleansing,,7 is a product of the invisibility of the rape of women in history
2. The London Charter which created the Nuremberg Tribunal did not list rape as an
offense. Local Council Law No. to, which was the basis for the prosecution of lower level
Nazis, did list rape as a crime against humanity. See Agreement on Punishment of Persons
Guilty of War Crimes, Jan. 31, 1946, Control Council for Germany, No.3, 50-55 (adopted
by the allied powers on Dec. 20, 1945, establishing the jurisdiction of military tribunals
operating in the occupation zones). But no cases were brought on this ground, perhaps
because the allied forces were not innocent of this particular atrocity. See generally
ADALBERT RUCKERL, THE INvESTIGATION OF NAZI CRIMES 1945-1978 (1980). See also
BROWNMILLER, supra note 1, at 31-113.
3. BROWNMILLER, supra note 1, at 65-78 (reporting on rape by Russian, Moroccan, and
U.S. armies and citing limited statistics on U.S. court martials for rape); Atina Grossman,
A Question of Silence: the Rape of German Women by Occupation Soldiers, OCTOBER
(April 1994); MICHAEL WALZER, JUST AND UNJUST WARS (1994).
4. See LEON FRIEDMAN, THE LAW OF WAR: A HISTORY, YOLo II. 1061 (1972).
5. See THE TOKYO WAR CRIMES TRIAL, YOLo I (R.I. Pritchard & S. Magbunua Zaide
eds., 1981). The indictment charged "violation of recognized customs and conventions of
war," including "mass murder, rape, pillage, brigandage, torture and other barbaric cruelties
upon the helpless civilian population of the over-run countries." Commander Matsui, in
charge of the capture of Nanjing, was found guilty of violations of the laws of war because
he was aware of the atrocities, including the mass rape of women, and did nothing to stop
them. [d. at 49, 814-816. Defendants Hirota and Admiral Toyoda were likewise charged
with responsibility for massive atrocities including rape. [d. at 49, 791-792. See also W.H.
Parks, Command Responsibility for War Crimes, MIL. L. REv. 1,69-70 (Fall 1973).
6. See, Ustinia Dolgopol and Snehal Paranjape, Comfort Women: An Unfinished Ordeal,
(Report of a Mission, International Commission of Jurists 1994). WAR CRIMES ON ASIAN
WOMEN: MILITARY SEXUAL SLAVERY BY JAPAN DURING WORLD WAR II-THE CASE OF
THE FILIPINO COMFORT WOMEN (Dan P. Calica & Nelia Sancho eds., 1993).
7. There is evidence that all sides have used rape of women in this conflict, but the most
intensive use has been by the Bosnian-Serbs against Bosnian-Muslim women. Jeri Laber,
Summer 1994]
SURFACING GENDER
245
as well as in the present. Geopolitical factors - that this rape is being
perpetrated by white men against white, albeit largely Muslim women, is
occurring in Europe, and contains the seeds of a new world war - cannot
be ignored in explaining the attention given to these rapes. 8 By contrast,
the rape of fifty percent of the women of the indigenous Yuracruz people
in Ecuador by mercenaries of an international company seeking to
"cleanse" the land went largely unreported. Similarly, the routine rape of
women in the civil wars in Peru, Liberia, and Burma, for example, has
drawn only occasional attention. 9 Few in the West remember that the rape
of Bengali women also had the distinct genocidal purpose of destroying
their racial distinctiveness. to
Perhaps the most telling example of invisibility came to light just as
this article was going to press. In February, 1995, nine months after the
news of horrific massacres in Rwanda was front-page news, the massive
scope of rape in that conflict was first reported in the European press. As
a result of a mission by a French child psychiatrist, it was revealed that
between 2,000 and 5,000 Rwandan women were pregnant and giving birth
as a result of rape. This figure, confirmed by the Rwandan National
Population Office, suggests that the overwhelming percentage of women
who survived the massacre had been raped. Most of the women in the
massacre, were sexually mutilated and killed. Women's shame and
unwillingness to speak about rape only partially explains the deafening
silence. 11
Moreover, just as historically the condemnation of rape in war has
rarely been about the abuse of women as a crime of gender, so the mass
rape in Bosnia has captured world attention largely because of its
Questions of Rape, N.Y. REv. OF BOOKS, Mar. 25, 1993, at 4.
8. Revising this article in February, 1995, it is difficult to know with certainty whether
to use the past or present tense. Current reports suggest that with "ethnic cleansing" largely
accomplished, the campaign of human rights atrocities, including rape, has resided. It is
unlikely, however, that rape has been abandoned as, at least, a weapon of "conventional"
war. Thus, I continue to use the present tense because the invisibility of rape is so
pervasive.
9. Presentation of Guadelupe Leon, Panel on Military Violence and Sexual Slavery,
1993 U.N. Conference on Human Rights, NGO Parallel Activities, June 1993 (discussing
the rape of the Yuracruz women); AMERICAS WATCH AND WOMEN'S RIGHTS PROJECT,
UNTOLD TERROR: VIOLENCE AGAINST WOMEN IN PERu's ARMED CONFLICT (1992); ASIA
WATCH AND WOMEN'S RIGHTS PROJECT, BURMA: RAPE, FORCED LABOR, AND RELIGIOUS
PERSECUTION IN NORTHERN ARAKAN (1992); SHANA SWISS, LmERIA: WOMEN AND
CHILDREN GRAVELY MISTREATED (1991). See also Shana Swiss & Joan E. Giller, Rape
as a Crime of War: A Medical Perspective, 270 JAMA 612 n.5 (1993).
10. See BROWNMILLER, supra note 1, at 78-86.
11. See David Crary, Generation of Rape is Born in Rwanda: Doctor describes
nightmarish abortion plight of victims, THE GUARDIAN, Feb. 11, 1995, at 13; Lindsey
Hilsum, Rwanda's Time of Rape Returns to Haunt Thousands, THE OBSERVER, Feb. 26,
1995, at 17.
.i·;4
d,.rrrwr
4
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association with "ethnic cleansing" or genocide. In one week, a midday
women's talk show opened with the script, "In Bosnia, they are raping the
enemy's women ... ," and a leading Croatian-American scholar, among
others, insisted on the distinction between "genocidal" rape and "normal"
rape. By contrast, our ad hoc Women's Coalition against Crimes against
Women in the Former Yugoslavia characterized rape as a weapon of war,
whether used to dilute ethnic identity, destabilize the civilian population,
or reward soldiers. But for many, rape remains an inevitable byproduct of
war except when it is a vehicle of genocide.
The elision of genocide and rape in the focus on "genocidal rape" as
a means of emphasizing the heinousness of the rape of Muslim women in
Bosnia is dangerous. Rape and genocide are separate atrocities. Genocide
involves the infliction of all forms of violence to destroy a people based on
its identity as a people, while rape is sexualized violence that seeks to
destroy a woman based on her identity as a woman. 12 Both are based on
total contempt for and dehumanization of the victim, and both give rise to
unspeakable brutalities. Their intersection in the Serbian, and to a lesser
extent, the Croatian aggressions in Bosnia defines an ineffable living hell
for Muslim women. They must contend with the loss of their world, with
the loss of self together with loss of community, and marginalization in
diaspora.
But to describe the horror of "genocidal" rape as "unparalleled" is
factually dubious and risks rendering rape invisible once again. Labelling
rape as "genocidal" does not necessarily increase the likelihood that, when
ethnic war ceases or is forced back into the bottle, the crimes against
women, the voices of women, and their struggles to survive will be
vindicated. Moreover, it significantly increases the likelihood that
condemnation will be limited to this seemingly exceptional case; that
women who are brutally raped for domination, terror, booty, or revenge in
Bosnia and elsewhere will not be heard.
The creation of the International Criminal Tribunal for the Former
Yugoslavia ("International Tribunal")13 makes it more difficult, but not
12. The same is true in the less frequent case of rape against men, except that when a
man is raped, the humiliation is accomplished through reducing him to the status of a
woman. For this reason, rape, whether carried out against women or men, is a crime of
gender.
13. The full title of the Statute of the International Tribunal is the International Tribunal
for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991,
(hereinafter referred to as "Statute"). The Statute is the annex to the Report of the
Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808, U.N.
SCOR 48th Sess., at 7 para. 25, U.N. Doc. S/25704 (1993) [hereinafter Report of SecretaryGeneral]. The Tribunal received authority to prosecute war crimes in Rwanda in 1994.
Final report of the Commission of Experts established Pursuant to Security Council
Summer 1994]
SURFACING GENDER
247
impossible, to barter impunity for peace. The pressure of survivors and
their advocates, together with the global women's human rights movement,
makes it harder for the International Tribunal to ignore or marginalize
sexual violence against women. Whether rape, forced prostitution, and
forced impregnation of women will be effectively prosecuted before the
ad hoc Tribunal, and whether the survivors will obtain redress, depends on
constant vigilance. The situation presents an historic opportunity ~s well
as an historical imperative, to insist on justice for the women of Bosnia and
to press for a feminist reconceptualization of the role and legal status of
rape under humanitarian as well as human rights law.
To do this, it is necessary to "surface" gender in the midst of genocide,
and at the same time, to avoid dualistic thinking. We must critically
examine the claim that rape as a tool of "ethnic cleansing" is unique, worse
than or not comparable to other forms of rape in war or in peace, at the
same time that we recognize that rape together with genocide inflicts
mUltiple, intersectional harms. 14 This combination of the particular and
the general is critical if the horrors experienced by women in Bosnia are
to be fully understood and if that experience is to have meaning for women
brutalized in less-known theaters of war or in the byways of daily life.
This article examines the evolving legal status of rape (and other forms
of sexual violence such as forced prostitution and forced pregnancy) in war,
with attention to both the particular and the general as well as to the
tension between them. 15 It focuses on two central questions of conceptualization. Part I addresses whether these gender crimes are fully recognized
as war crimes under the Geneva Conventions, the cornerstone of what is
called "humanitarian" law - that is, the prohibitions that have made war
Resolution 935, U.N. SCOR, 49th Sess., at 40-52, U.N. Doc. No. S1199411405 (1994).
14. On the significance of the intersection of categories of oppression, see Kimberle
Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL
F.139.
15. See Theodor Meron, Rape As a Crime Under International Humanitarian Law, 87
AM. J. INT'L L. 424 (1993) (exploring the treatment of rape in humanitarian law); Dorothy
Q. Thomas & Regan E. Ralph, Rape in War: Challenging the Tradition of Impunity, 14
SAIS REVIEW 81 (1994) (examining analytic questions presented by rape in different
contexts of war); Deborah Blatt, Recognizing Rape as a Method of Torture, 19 N.Y.U.
REv. L. & Soc. CHANGE 821 (1992) (arguing rape in detention should be viewed as
torture); Kathleen M. Pratt & Laurel E. Fletcher, Time for Justice: The Case for
International Prosecutions of Rape and Gender-Based Violence in the Former Yugoslavia,
9 BERKELEY WOMEN'S L.J. 77 (1994) (summarizing the factual background of war and rape
in the former Yugoslavia and examining the applicability of humanitarian law); Adrien
Katherine Wing & Sylke Merchan, Rape, Ethnicity, and Culture: Spirit Inquiry from Bosnia
to Black America, 25 COLUM. HUM. RTS. L. REv. 1 (1993) (examining factual and legal
implications of etbno-gender violence in both contexts); Catharine MacKinnon, Rape,
Genocide, and Women's Human Rights, 17 HARv. WOMEN'S LJ. 5 (1994) (emphasizing
genocidal aspects of rape in Bosnia).
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itself permissible. This requires examination of whether rape is viewed as
a "grave breach" and whether, within that framework, it is treated as a form
of torture. Part II explores whether the customary international legal
concept "crimes against humanity" does or should distinguish between
"genocidal rape" and mass rape for other purposes. It argues that in order
to capture the multi-layered relationship between gender and ethnicity in
the campaign of sexual violence against women in Bosnia, as well as the
gender element in all campaigns of sexual violence, the concept of "crimes
against humanity" must be interpreted to encompass mass rape apart from
persecution and be broadened to encompass persecution based on gender.
The conclusion suggests some connections between the recognition of rape
in war and rape in the time called peace.
I. Is Rape a War Crime?
Although news of the mass rapes of women in Bosnia had an
electrifying effect and became a significant factor in the demand for the
creation of the International Tribunal, the leading question for a time has
been whether rape, forced prostitution, forced pregnancy, and other forms
of sexual abuse are "war crimes" within the meaning of the Geneva
Conventions and the internationally agreed-upon norms that bind all
nations, whether or not they have signed the Conventions. 16 The proceedings before the Tribunal are likely to settle this question, but not necessarily
all the issues it presents.
The question is not whether rape is technically a crime prohibited in
war. Rape has long been viewed as a criminal offense under national and
international rules of war. 17 The 1949 Geneva Conventions, as well as the
1977 Protocols regarding the protection of civilians in war, explicitly
prohibit rape, forced prostitution, and any form of indecent assault and call
for special protection of women during war, including separate quarters
with supervision and searches by women only. IS Yet it is significant that
where rape and other forms of sexual assault are explicitly mentioned, they
16. Report of the Secretary-General, supra note 13, at 9 para. 35, at 10 para 37.
17. See YOUGINDRA KHuSHALANI, DIGNITY AND HONOUR OF WOMEN AS BASIC AND
FuNDAMENTAL HUMAN RIGHTS (1982).
18. Geneva Conventions Relative to the Protection of Civilian Persons in Time of War,
adopted 12 Aug. 1949, arts. 3(1)(a), 3(1)(c), 27, 76, 97 [hereinafter Geneva Convention IV];
Protocol Additional in the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts adopted 8 June 1977, art. 76
[hereinafter Protocol I]; and Protocol Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of Non-International Armed Conflicts,
adopted 8 June 1977, art. 4 [hereinafter Protocol II], reprinted in CENTER FOR HUMAN
RIGHTS, HUMAN RIGHTS: A COMPILATION OF INTERNATIONAL INSTRUMENTS, VOL. 1799939 (1993).
Summer 1994]
SURFACING GENDER
249
are categorized as an attack against honor. 19 Crimes of violence, including murder, mutilation, cruel treatment, and torture, are treated separately.
The conceptualization of rape as an attack against honor, as opposed
to a crime of violence, is a core problem. Formal sanctions against rape
range from minimal to extreme. Where rape has been treated as a grave
crime in domestic laws, it has often been because it violates the honor of
the man and his exclusive right to sexual possession of his woman as
property. Thus, in the United States the death penalty for rape was
prevalent in southern states and was used against African-American men
convicted of raping white women or, more precisely, white man's
property. 20 Similarly, the media often refer to the mass rape in Bosnia as
the rape of "the enemy's women." The enemy in this formulation is the
male combatant in the seemingly all male nation, religious, or ethnic group.
Under the Geneva Conventions, the concept of honor is somewhat more
enlightened: rape is a crime against the honor and dignity of women. 21
The Commentary explains that "[h]oriour is a moral and social quality,"
respect for which is owed to "man because he is endowed with a reason
and conscience,,22 and describes rape as a "outrage . . . of the worst
kind.,,23 But this too is problematic. Where rape is treated as a crime
against honor, the honor of women is called into question and virginity or
chastity is often a precondition. 24 Honor implies the loss of station or
respect; it reinforces the social view, internalized by women, that the raped
woman is dishonorable. And while the concept of dignity potentially
embraces more profound concerns, standing alone it obfuscates the fact that
rape is fundamentally violence against women - violence against her
body, autonomy, integrity, seltbood, security, and self-esteem as well as her
standing in the community. This failure to recognize rape as violence is
critical to the traditionally lesser or ambiguous status of rape in humanitarian law.
The issue then is not whether rape is a war crime, but whether it is a
crime of the gravest dimension. Under the Geneva Conventions, the most
serious war crimes are designated as "grave breaches.,,25 The significance
of a war crime's categorization as a "grave breach" is threefold. On the
level of discourse it calls attention to the egregiousness of the assault. On
19. See, e.g., Geneva Convention IV, supra note 18, art. 27, para. 2; Protocol II, supra
note 18, art. 4.
20. See, e.g., Coker v. Georgia, 433 U.S. 584 (1977).
21. KHUSHALANI, supra note 17, at 39-76.
22. Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons
in Time of War of 1958, International Committee of the Red Cross, art. 27 at 202
(commentary of Jean Pictet) [hereinafter 1958 ICRC Commentary].
23. [d. at 205.
24. See, e.g., AMERICAS WATCH AND WOMEN'S RIGHTS PROJECT, supra note 9, at 10-16.
25. Geneva Convention IV, supra note 18, art. 147.
Ie!]
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a practical level, it is not necessary that rape be mass or systematic: one
act of rape is punishable. Finally, only crimes that are grave breaches give
rise to universal jurisdiction under the Geneva Conventions. Universal
jurisdiction means that every nation has an obligation to bring the
perpetrators to justice through investigating, arresting, and prosecuting
offenders in its own courts or extraditing them to more appropriate
forums. 26 The existence of universal jurisdiction also provides a legal
rationale for trying such crimes before an international tribunal and for the
obligation of states to cooperate. If rape is not a "grave breach" under the
Geneva Conventions, some international jurists would argue that it can be
redressed only by the state to which the wrongdoer belongs or in which the
wrong occurs, and not by an International Tribunal. 27
The relevant portions of the Fourth Geneva Convention relating to the
protection of civilians do not specifically mention rape in the list of crime
that are considered "grave breaches," and the Tribunal Statute simply
reiterates the Convention's list. Included are "willful killing, torture, or
inhumane treatment" and "willfully causing great suffering or serious injury
to body or health.,,28 Clearly these categories are generic, and broad
enough to encompass rape and sexual abuse. 29 But in addition to
qualifying as simply "inhumane treatment," or even as "willfully causing
great suffering or serious injury to body or health," it is important that rape
be recognized as a form of torture in order to remove the ambiguity that is
the legacy of sexism and to place the crimes against women on par with
crimes against men.
When the Conventions were drafted, the view that torture was a method
of extracting information was dominant. 30 The crime of "wilfully causing
26. Id., art. 145. It should be noted here that the concept of "grave breach" applies only
to international conflict and not to civil war. Although there is debate about whether the
conflict in the territory of the fonner Yugoslavia is international or internal, the U.N.
Security Council has indicated that it is an international conflict. Report of the SecretaryGeneral, supra note 13, at 8 para. 25.
27. The concept of "purpose" should not be understood as requiring a showing of specific
intent on the part of the perpetrator. Rather it calls for an evaluation of the functions and
effects of the violence. See Rhonda Copelon, Recognizing the Egregious in the Everyday:
Domestic Violence As Torture, 25 COLUM. HUM. RTS. L. REv. 290, 325-331 (1994).
28. Geneva Convention IV, supra note 18, art. 147; Protocol I, supra note 18, arts. 11,
85(3).
29. KHUSHALANI, supra note 17, at 39-76. See also Alexandra Stiglmayer, The Rapes
in Bosnia-Herzegovina, in MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIAHERZEGOVINA (Alexandra Stiglmayer ed., 1994) [hereinafter MASS RAPE].
30. The 1958 ICRC Commentary to the Fourth Geneva Convention explains:
The word torture has different acceptations. It is used sometimes even in
the sense of purely moral suffering, but in view of the other expressions
which follow (Le. inhuman treatment...and suffering, etc) it seems that is
must be given here its, so to speak, legal meaning-Le., the infliction of
suffering on a person to obtain from that person, or from another person,
Summer 1994]
SURFACING GENDER
251
great suffering or serious injury to body or health" was added to the list of
grave breaches largely because the meaning of torture was so narrow. 31
Today, although it endures in popular thinking, the narrow definition of
torture has been largely abandoned. The historian Edward Peters writes:
"It is not primarily the victim's information, but the victim, that torture
needs to win - or reduce to powerlessness.,,32 Recent treaties, which
reflect customary international human rights law, define torture as the
willful infliction of severe physical or mental pain or suffering not only to
elicit information, but also to punish, intimidate, discriminate, obliterate the
victim's personality, or diminish her personal capacities. 33 Thus, torture
is now commensurate with willfully causing great suffering or injury for a
broader set of purposes. 34 It is not simply or necessarily the infliction of
terrible physical pain; it is also the use of pain, sensory deprivation,
isolation, and/or humiliation as a pathway to the mind. Indeed, in the
contemporary understanding of torture, degradation is vehicle and
debilitation, a goal. 35
It is thus entirely appropriate that the implementation of the Geneva
Convention today incorporate the contemporary understanding of torture
rather than use the category of "wilfully causing great suffering ..."
which, though perhaps equivalent, has no counterpart in human rights law.
The Commentary to common article ·3 emphasizes that progressive
interpretation of the meaning of torture is intended: "However great the
care taken in drawing up a list of all the various forms of infliction, it
would never be possible to catch up with the imagination of future torturers
who wished to satisfy their bestial instincts; and the more specific and
complete a list tries to be, the more restrictive it becomes.,,36 This
Commentary also makes clear, in discussing the taking of hostages and the
imposition of non-judicial punishments, that condemnation can extend to
confessions or information ...
1958 JCRC Commentary, supra note 22, at 598.
31. The 1958 Commentary defines this crime as referring to "suffering inflicted without
the ends for which torture is inflicted . . . It would therefore be inflicted as punishment, in
revenge or for some other motive, perhaps out of pure sadism...." Id. at 599. Since the
Conventions do not specify that only physical suffering is meant, it can quite legitimately
be held to cover moral suffering as well.
32. EDWARD PETERS, TORTURE 164 (1985).
33. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., at 3, U.N. Doc. AlRES/39/46 (1984);
Inter-American Convention To Prevent and Punish Torture, 9 Dec. 1985, art. 2, 258,
reprinted in J. HERMAN BURGERS & HANs DANELIUS, THE UNITED NATIONS CONVENTION
AGAINST TORTURE: A HANDBOOK ON THE CONVENTION AGAINST TORTURE AND OTHER
CRUEL, INHUMAN OR DEGRADING TREATMENT OR PuNISHMENT (1988).
34. Copelon, supra note 27, at 325-331.
35. AMNEsTY INTERNATIONAL, REPoRT ON TORTURE (1974).
36. 1958 JCRC Commentary, supra note 22, at 39.
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HASTINGS WOMEN'S LAW JOURNAL
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practices which are both common and previously tolerated. 37 In addition,
the Commentary to the 1977 Protocol I, specifically refers to the evolving
concept of torture in international human rights law. 38 There is thus little
doubt that the Conventions were intended to incorporate the evolving
concept of torture in international human rights as well as humanitarian
law. To remove the ambiguity surrounding the gravity of rape and similar
forms of gender violence in both contexts, it is important that the category
"torture" be used.
Although largely ignored until recently by human rights advocates, the
testimonies and studies of women tortured by dictatorial regimes and
military occupations make it clear that rape is one of the most common,
terrible, and effective forms of torture used against women. 39 Rape
attacks the integrity of the woman as a person as well as her identity as a
woman. It renders her, in the words of Lepa Mladjenovic, a psychotherapist and Serbian feminist antiwar activist, "homeless in her own body.,,40
It strikes at a woman's power; it seeks to degrade and destroy her; its goal
is domination and dehumanization.
Likewise, the testimonies of women raped in the wars in former
Yugoslavia, whether they were attacked once or forced into prostitution,
make clear that rape is both a profound physical attack and a particularly
egregious form of psychological torture. Their testimonies document the
intersection of contempt for and conquest of women based on their identity
as women and their national or religious/cultural identity. Croatian women
are raped in revenge against their "Ustasha mothers" while Bosnian-Muslim
women are taunted that they should bear "Serb babies." This frequent
genocidal threat, carried out on the bodies and spirits of women, underscores the omnipresent threat, fear and/or reality of pregnancy. Genocide
entrains forced pregnancy - repeated rape and detention until abortion is
37. [d. (stating that the Conventions intend to "prohibit practices which are fairly general
in wartime ... [and,] although ... common ... until quite recently, ... are nevertheless
shocking to the civilized mind").
38. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions
of 12 August 1949, International Committee of the Red Cross, art. 75(a)(ii), at 873 (citing
the General Assembly's 1975 Declaration on Torture which expanded impermissible
purposes by_adding punishment and intimidation and noting the General Assembly's 1984
vote adopting the Convention Against Torture, which it described at that time as "without
binding force of law, [but] nevertheless hav[ing] a real moral value.").
39. See, e.g., Ximena Bunster-Burotto, Surviving beyond Fear: Women and Torture in
Latin America, in WOMEN AND CHANGE IN LATIN AMERICA 297 (June Nash & Helen Safa
eds., 1986); F. Allodi & S. Stiasny, Women as Torture Victims, 35 CANADIAN J. OF
PSYCHIATRY 144 n.2 (1990); Inge Lunde & Jorge Ortmann, Prevalence and Sequelae of
Sexual Torture, 336 LANCET 289 (1990). While not the subject here, the rape of men is
also a devastating crime of gender, designed as it is to humiliate through feminization.
40. Testimony before the Global Tribunal on Violations of Women's Human Rights,
NGO Parallel Activities, 1993 World Conference on Human Rights, Vienna, June 15, 1993.
Summer 1994]
SURFACING GENDER
253
no longer an option. The horror is only exacerbated by the fact that in
Bosnia the rapists are, in many cases, former colleagues, neighbors, or even
friends. 41
Indeed, torturers know well the power of the intimate in the process of
breaking down their victim. 42 Because rape is a transposition of the
intimate into violence, rape by acquaintanc~s, by those one has trusted, is
particularly world shattering and thus a particularly effective tool of ethnic
cleansing. It is no wonder that local Bosnian Serbs are being incited and,
in some cases, recruited to rape. The stories of some of the perpetrators,
notwithstanding their self-justificatory quality, reflect the common methods
of training torturers - exposure to and engagement in increasingly
unthinkable violence and humiliation. 43
The Statute establishing the jurisdiction of the International Tribunal
largely tracks the Geneva Conventions' definition of grave breach and does
not, therefore, list rape as such.44 The creation of the Tribunal was
preceded by the condemnation of sexual violence against women in these
wars in the Vienna Declaration of the World Conference on Human Rights
as well as by the U.N. Commission on Human Rights. 45 The first papers
filed by the Prosecutor, however, raised serious doubt about whether rape
would be treated as a grave breach. 46 In February, 1995, due in no small
41. See Stiglmayer, in MASS RAPE, supra note 29 (testimonies of women raped in
Bosnia).
42. See AMNESTY INTERNATIONAL, REPORT ON TORTURES (1973); ELAINE SCARRY, THE
BODY IN PAIN: THE MAKING AND UNMAKING OF THE WORLD 41 (1985); JUDITH LEWIS
HERMAN, TRAUMA AND REcOVERY (1992).
43. See Stanley Milgram, Some Conditions of Obedience and Disobedience to Authority,
18 HUM. REL. 57 n.l (1965). On the training of torturers, see AMNEsTY INTERNATIONAL,
TORTURE IN GREECE: THE FIRST TORTURERS' TRIAL 1975, (1977); Mike Haritos-Fatouros,
The Official Torturer: A Learning Model for Obedience to the Authority of Violence, 18
J. APPLIED SOC. PSYCHOL. 1107 n.13 (1988). For examples of stories by the perpetrators
of rape in Bosnia, see Stiglmayer, in MASS RAPE, supra note 29.
44. Article 2 identifies as grave breaches "(a) wilful killing; (b) torture or inhuman
treatment, including biological experiments; (c) wilfully causing great suffering or serious
bodily injury to body or health." Report of the Secretary-General, supra note 13, at 10 para.
40.
45. "Violations of the human rights of women in situations of armed conflict are
violations of the fundamental principles of international human rights and humanitarian law.
All violations of this kind, including in particular murder, systematic rape, sexual slavery,
and forced pregnancy, require a particularly effective response." Vienna Declaration and
Programme of Action, United Nations World Conference on Human Rights, U.N. GAOR,
47th Sess., at 37, U.N. Doc. NConf.157124 (part 1) (1993) [hereafter Vienna Declaration];
United Nations Commission on Human Rights, Rape and Abuse of Women in the Territory
of the Former Yugoslavia, E.S.C. Res. 1993/8, U.N. ESCOR, 45th Sess., Supp. No.3, at 6061, U.N. Doc. FJCN.4119931122 (1993).
46. The first public mention of rape by the Prosecutor was in an affidavit seeking
deferral to the Tribunal of the Tadic case which had been previously within Germany's
jurisdiction. An Application for Deferral by the Federal Republic of Germany in the Matter
of Dusko Tadic Also Known By the Names Dusan "Dule" Tadic, Case No. 1 of 1994 (Trial
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part to the continuous monitoring of women's human rights advocates, the
Tribunal Prosecutor filed two indictments which give prominence to the
charges of rape and classify it as a grave breach, a crime against humanity,
and a violation of the laws and customs of war. 47 Prosecuting rape as a
grave breach should effectively expand the meaning of the Conventions and
Protocols and obviate the need for formal amendment.
The classification of rape as a grave breach in the indictments is thus
extremely significant, but it is not without problems. Although the
indictments recite as applicable the broad definition of torture contained in
the U.N. Torture Convention,48 the indictments charge rape as "wilful
infliction of great suffering," not "torture."49 Despite the fact, as discussed above, that these two terms have become virtually synonymous.
The failure to charge rape as torture perpetuates the ambiguity as to its
status. Moreover, the use of terms particular to humanitarian law fails to
make the connection with this most egregious violation of human rights.
Curiously, the Prosecutor uses the category "torture" very sparingly in
his indictments. Physical brutality, commonly understood as torture by
other bodies charged with implementation of human rights prohibitions
against torture, is charged as "wilful infliction of severe suffering or
Chamber, Oct. 11, 1994). The affidavit gave decidedly secondary consideration to the
conditions affecting women and to the severity of rape, for example, treating it as less
serious than beatings or omitting discussion of it. At the hearing on the deferral application,
Judge Odio-Benito questioned the Prosecutor on these defalcations and an amicus brief, filed
by the International Women's Human Rights Law Clinic, the Harvard Human Rights
Program, and the Jacob Blaustein Institute, underscored the trivialization of violence against
women. See Re: Application for Deferral By the Republic of Germany in the Matter of
Dusko Tadic Also Known By the Names Dusan "Dule" Tadic, (on file with author). The
Chief Prosecutor acknowledged the value of this critique:
We essentially concur with your comments as to the characterization of rape.
The Declaration's discussion of rape does not sufficiently reflect our policy
of equating rape to other serious transgressions of international law. Apart
from the relevance to charges of genocide and crimes against humanity, rape
and other sexual assaults will be prosecuted under the Statute's provisions
for torture, inhumane treatment, willfully causing great suffering or serious
injury to body, and inhumane acts, and other provisions that adequately
encompass the nature of the acts committed and intent formulated.
Letter from Justice Richard Goldstone, Prosecutor, to Rhonda Copelon, Felice Gaer and
Jennifer Green (Nov. 22, 1994) (on file with author). While the indictment against Tadie
is very responsive to the critique, it does not identify rape as torture, as discussed
hereinafter.
47. Prosecutor of the Tribunal v. Zeljko Meakie [hereinafter Meakie]; Prosecutor of the
Tribunal v. Dusan Tadie [hereinafter Tadie].
48. Meakie, at para. 14; Tadie, at para. 3.6.
49. In Prosecutor of the Tribunal v. Zeljko Meakic, the indictment charges the defendant
Radie with five incidents of forcible sexual intercourse against "A" between late June and
late July. [d. at paras. 22.2, 22.5, 22.8, 22.11, 22.14. It charges the defendants Gruban and
Kostie with wilfully causing great suffering for repeatedly raping "F' during a two-month
period. [d. at paras. 25.1-25.2 and 26.1-26.2, respectively.
Summer 1994]
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255
physical or mental health damage. ,,50 For example, the· most common
forms of torture include beating, kicking, and the infliction of pain with
ordinary objects such as canes, knives, and cigarettes. This is true of
charges involving prisoners who were severely beaten, kicked, stomped on,
(often to the point of unconsciousness), left to die, forced to drink foul
fluids and/or otherwise abused. 51 Nor do the indictments appear to
encompass the evolving understanding of psychological torture. 52 In other
words, these early indictments fail to charge both rape and other common
forms of torture as "torture."
These indictments characterize only one offense as torture: the sexual
mutilation of a male prisoner. The case is gruesome - two prisoners were
forced to bite off the testicle of another prisoner who subsequently bled to
death.53 The general problem with the Prosecutor's definition is illustrated
by the fact that torture is charged only as to the mutilated prisoner; those
who were compelled to enact the mutilation are viewed as having been
subjected to inhuman treatment. 54 The sex-specific problem involves the
differential treatment of sexual violence. What makes this sexual
mutilation torture as compared to the repeated (or, indeed, one act of) rape
50. For comparative treatment of a charge of torture, see BURGERS AND DANELIUS, supra
note 33 (discussing the legislative history of the U.N. Torture Convention and describing
the most common forms of torture). See also NIGEL RaDLEY, THE TREATMENT OF
PRISONERS UNDER INTERNATIONAL LAW (1986), and cases cited therein.
51. For example, paragraph 2.6 of the Tadic indictment describes the factual basis of the
charges:
Severe beatings were commonplace. The camp guards, and others who
came to the camp and physically abused the prisoners, used all manner of
weapons during these beatings, including wooden batons, metal rods and
tools, lengths of thick industrial cable that had metal balls affixed to the end,
rifle butts, and knives. .Both female and male prisoners were beaten,
tortured, raped, sexually assaulted, and humiliated. Many, whose identities
are known and unknown, did not survive the camp ....
Tadic, at para. 2.6.
52. Amnesty International has laid great emphasis on the psychological component of
torture. AMNEsTY INTERNATIONAL, REPORT ON TORTURE 39-55 (1975). See also RaDLEY,
supra note 50, at 83-86; BURGERS & DANELIUS, supra note 33 at 177-78. Of particular
relevance here is the finding of the Human Rights Committee that a concert pianist was
subjected to "severe psychological torture" because he had been threatened for hours with
amputation of his hands by an electric saw, as a result of which he lost sensitivity in his
hands and arms for almost a year and suffered continuing discomfort thereafter. See Report
of the Human Rights Committee, U.N. GAOR, 38th Sess., Supp. No. 40, Annex 12, paras.
1.6, 8.3, U.N. Doc A/38/40 (1983) (Estrella v. Uruguay). Applying Estrella, the threat of
rape endured constantly by women in detention should be considered as a form of torture.
The threat of rape, like the threat to amputate in that case, challenges bodily integrity in a
way which is deeply connected to the most import aspects of personal identity.
53. Tadic, at para. 5.1.
54. By contrast, the mainstream understanding of torture recognizes that being forced to
perform humiliating acts or to confess - that is, to cross the boundaries of civilized
conduct - is a key method of breaking the will of the torture victim. See AMNEsTY
INTERNATIONAL, supra note 52, at 41-42. See also Haritos-Fatouros, supra note 43.
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of women over a period of months charged in the same indictment? It is
hard not to attribute it to the sex of the decision-makers; to the difficulty
that men have in empathizing with the female victim by comparison to the
horror that surfaces so easily when male sexual abuse is the issue and to
the fact that the concept of rape as torture implicates men's sexuality and
comfortable distinctions between voluntary sexual intercourse and rape. It
cannot be disconnected from the fact that the damage of rape is unseen: the
physical damage is largely internal and the psychological is born in
silence. 55 Finally, the distinction between male sexual mutilation and
rape, which could also be viewed as a form of female sexual mutilation,
must be linked to their differential prevalence. Because rape is so common
in war as well as peace, it loses its shock value. It is the egregious in the
everyday, obscured or naturalized by the banality of evil. 56
This failure to charge rape as torture emphasizes the importance, from
a practical as well as a moral perspective, of insisting that all rape, and not
only mass or genocidal rape, be subject to the most severe condemnation
and punishment. It is also important that the range of sexual violence,
including forced prostitution and forced pregnancy, be explicitly charged
as grave breaches, consisting of torture. The Vienna Declaration explicitly
included forced pregnancy in its condemnation of the mass atrocities in the
former Yugoslavia. Forced pregnancy must be seen as a separate offense
against women as well as an act of genocide: the expressed intent to make
women pregnant is an additional form of psychological torture; the goal of
impregnation leads to imprisoning women and raping them until they are
pregnant; the fact of pregnancy, whether or not aborted, continues the
initial torture in a most intimate and invasive form; and the fact of bearing
the child of rape, whether or not the child is placed for adoption, has a
potentially life-long impact on the woman and her place in the community.57 Finally, it should be noted that under the Geneva Conventions as
well as the Tribunal Statute, perpetrators are held responsible, whether or
not they were officially ordered to commit the acts charged, and responsi-
55. This might be inferred from the fact that the indictments charge beating as wilfully
causing great suffering or serious injury to body or health, while repeated rape is only
viewed as wilfully causing great suffering. Meakic, at paras. 20.2, 22.2, 24.2, 25.2, 26.2.
On the other hand, a case involving kicking in the testicles, repeated beating, and kicking
in the ribs, causing the prisoner to lapse in and out of consciousness, was charged as
wilfully causing great suffering. [d. at para. 29.2.
56. HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL
93 (2d ed. 1964). This point is developed with regard to domestic violence in Copelon,
supra note 27.
57. See generally MASS RAPE, supra note 29. See also ANNE TIERNEY GOLDSTEIN,
RECOGNIZING FORCED IMPREGNATION AS A WAR CRIME UNDER INTERNATIONAL LAW
(Center for Reproductive Law and Policy, 1993) (examining forced impregnation under the
Geneva Conventions and as a means of genocide and enslavement).
Summer 1994]
SURFACING GENDER
257
bility is imputed to commanders where they knew, or should have known,
of the likelihood of rape and failed to take all feasible measures within
their power to prevent or repress it. 58
II.
Genocidal Rape Versus "Normal" Rape: When Is Widespread
Rape a Crime Against Humanity?
"Crimes against humanity" were first formally recognized in the
Charter and Judgment of the Nuremberg Tribunal; they do not depend on
adherence to a treaty, and they, like grave breaches, give rise to universal
jurisdiction. Since crimes against humanity can be committed in times of
war or peace, it is irrelevant whether war in the former Yugoslavia is
international or internal.
Rape has been separately listed, and forced prostitution acknowledged,
as a "crime against humanity" in the Statute of the International Tribunal. 59 This is not without precedent. After the Second World War, Local
Council Law No. 10, which provided the foundation for the trials of lesser
Nazis by the Allied forces, also listed rape as a crime against humanity.
No one, however, was prosecuted. 60 Thus, the Security Council's
reaffirmation that rape is a "crime against humanity," and therefore among
the most egregious breaches of civilization, is profoundly important. It is
doubly important that the Prosecutor has also charged rape as a crime
against humanity. 61 But the meaning of this designation and its import for
other contexts in which women are subjected to mass rape apart from
genocide or "ethnic cleansing" are not clear. The danger, as always, is that
extreme examples produce narrow principles.
The Commentary to the Statute on this aspect of the jurisdiction of the
current Tribunal signals this danger. It explains crimes against humanity
as "inhumane acts of a very serious nature, such as willful killing, torture
or rape, committed as part of a widespread or systematic attack against any
civilian population on national, political, ethnic racial, or religious
grounds.,,62 The Prosecutor's indictments follow SUit. 63 Several aspects
of this definition deserve comment.
First, on the positive side, the Statute correctly encompasses violations
that are widespread but not necessarily "systematic." The law wisely does
58. Protocol I, supra note 18, art. 86; Report of the Secretary General, supra note 13, art.
7, paras. 53-59 at 14-15.
59. Report of the Secretary-General, supra note 13, art. 4, paras. 47-49, at 1171.
60. KHuSHALANI, supra note 17, at 13-38.
61. Meakic, at paras. 22.4, 22.7, 22.10, 22.13, 25.4, 26.4, 30.4; Tadic, at para. 4.4.
62. Report of the Secretary-General, supra note 13, art. 4, para. 48, at 13.
63. The indictments explain that the offense of "crimes against humanity" applies when
the "alleged acts or omissions were part of a widespread or large-scale or systematic attack
directed against a civilian population, specifically the Muslim and Croat population of the
Prijedor district." Meakic, at para. 15; Tadic, at para. 3.7.
t·
d
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not require massive numbers but instead encompasses general frequency
and patterns of abuse. Particularly with rape, numbers are unprovable: a
small percentage of women will ultimately come forward, and the
significance of rape threatens to become drowned in statistical claims.
Moreover, the principle of responsibility under the Statute, as well as in the
customary law, does not require that rape be ordered or centrally organized.
Commanders can be held responsible where widespread violence is known
and tolerated. 64 In Bosnia, rape is clearly a conscious tool of war and
genocide. While it is politically and ethically important for the Tribunal
to investigate and prove the chain of command, it is likewise important that
leaders be held legally responsible for acts of commission or omission,
even without proof that rape was committed under orders.
Second, the Commentary on the Statute does rank rape with torture in
terms of the gravity of the violence and its characterization as a crime
against humanity. While this is important (and bears as well on the
treatment of rape as torture under the grave breach category), it remains
problematic that the Statute lists rape and torture as distinct, instead of
identifying rape as a form of torture. 65
The third issue with the Statute's definition of crimes against humanity,
however, is its conftation of what were originally understood as two
separate and independent criteria of crimes against humanity: gross acts of
violence and persecution-based offenses. 66 Under the original concept,
rape, if widespread or systematic, should independently qualify as a crime
against humanity because it is a gross act of violence. By merging the
criterion of gross violence with persecution-based offenses, the Commen64. Report of the Secretary-General, supra note 13, art. 7; Report of the International
Law Commission, Draft Code of Offenses against the Peace and Security of Mankind, U.N.
GAOR, 6th Sess., Supp. No.9, art. 2, at 11, U.N. Doc. Al1858 (1951) [hereinafter Draft
Code].
65. The Statute reads "torture or rape;" it could have read, for example, "torture,
including rape."
66. See KHUSHALANI, supra note 17, at 14-16. Article 6(c) ofthe London Charter, which
established the Nuremberg Tribunal, defined "crimes against humanity" as follows:
namely; murder, extermination, enslavement, deportation, and other
inhumane acts committed against any civilian population, before or during
the war, or persecutions on political, racial or religious grounds ...
Agreement by the United States, France, Britain and the U.S.S.R., 82 U.N.T.S. 279, cited
in KHuSHALANI, supra note 17, at 14 n.33. This clear bi-partite definition was obscured
somewhat at the same time as "social" and "cultural" were added as bases of persecution
by the post-war proposal of International Law Commission in Article 2 of the Draft Code
of Offenses Against Peace and Security of Mankind which defines crimes against humanity
as:
Inhumane acts such as murder, extermination, enslavement, deportation or
persecutions, committed against any civilian population on social, political,
racial, religious or cultural grounds. . . .
U.N. GAOR, 6th Sess., Supp. No.9, art. 2, at 13, U.N. Doc. Al1858 (1951), cited in
KHuSHALANI, supra note 17, at 31.
e*
WI
IIi
;;
HlmSW;
Summer 1994]
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tary could limit prosecution to rape which is undertaken as a method of
persecution on national, political, ethnic, racial, or religious grounds. Since
the Tribunal Statute lists rape and persecution separately, it is not clear,
until put into practice, whether the original, broader understanding of
crimes against humanity will prevail. But since widespread rape is a
critical aspect of genocide against the non-Serbian populations in Bosnia,
these prosecutions do not present a clear occasion for testing the sufficiency
of widespread rape, apart from the recognized grounds of persecution, as
a crime against humanity.
Acceptance of the conflation of rape and persecution, together with the
absence of gender as a basis of persecution, would narrow the concept of
crimes against humanity as well as jeopardize its application to women.
This narrow view of crimes against humanity, which treats gender crimes
as significant only when they are the vehicle of some "larger" persecution,
is quite prevalent and requires critical examination.
The international and popular condemnation of the rapes in Bosnia
tends to be either explicitly or implicitly based on the fact that rape is
being used as a tactic of ethnic cleansing. Genocidal rape is widely seen,
not as a modality of rape, but as unique. The distinction commonly drawn
between genocidal rape and "normal" rape in war or in peacetime is
proffered not as a typology, but rather as a hierarchy. But to exaggerate
the distinctiveness of genocidal rape obscures the atrocity of common rape.
Genocidal rape often involves gang rapes, is outrageously brutal, and
is done in public or in front of children or partners. It involves imprisoning women in rape "camps" and/or raping them repeatedly. These are also
characteristics of the most common rape in war, rape for booty or to boost
the morale of soldiers; and they are common characteristics of the use of
rape as a form of torture and terror by dictatorial regimes. 67
The notion that genocidal rape is uniquely a weapon of war is also
problematic. The rape of women is a weapon of war where it is used to
spread political terror, as in the civil war in Peru. 68 It is a weapon of war
where, as in Bosnia and elsewhere, it is used against women to destabilize
society and force families to flee. In time of war, women are the mainstay
of the civilian population, even more than in peacetime.
The widespread rape of Haitian women as a weapon not of war, but of
terror, in the recent virulent political repression in Haiti shares many of
these characteristics. Haitian women were routinely raped in their homes,
often repeatedly and in front of their children. They were raped because
67. See BROWNMll..LER, supra note 1; Bunster-Burrotto, supra note 39; AMNEsTY
INTERNATIONAL, WOMEN IN THE FRON1LINE (1991).
68. See generally AMERICAS WATCH AND WOMEN'S RIGHTS PROJECT, supra note 9;
Swill and Giller, supra note 9, at 612.
''ME
4AkMW
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of their active or presumed resistance to the illegal regime or that of their
partners or family members; they were raped simply because they lived in
poor sections which had voted overwhelmingly for Aristide and because,
as women, they kept civil society functioning before and after men went
into hiding. They were raped to render them powerless as well as to drive
home the powerlessness of their male "protectors." As a result of this
ultimate invasion of the security of person and home, many Haitian women
fled their homes and went into hiding or exile. The brutalities visited upon
them as women were not in the service of war or genocide, but the pattern
is familiar. Now, unlike the Bosnian-Muslim women, many Haitian women
can (and some are being forced by the lack of refuge elsewhere to) return
to their communities. But the suffering, estrangement, and the memory and
mark of this trauma does not end with physical return. 69
The rape of women, where permitted or systematized as "booty" of
war, is likewise an engine of war. It maintains the morale of soldiers,
feeds their hatred and sense of superiority, and keeps them fighting. For
this reason, and to prevent the public outcry that attended open mass rape,
the Japanese military industrialized the sexual slavery of women in the
Second World War. Deceived by false offers of employment, or taken
forcibly, women were disappeared into "comfort stations" and, once there,
were raped repeatedly and moved from battlefield to battlefield to motivate
and reward the Japanese soldiers. Genocide was not a goal, but it is
believed that seventy to ninety percent of these women died in captivity,
and among the known survivors, none were subsequently able to bear
children. 70 For similar reasons, the United States military in Vietnam
raped Vietnamese women and established brothels, relying on dire
economic necessity rather than kidnapping to fill them. 71 The testimonies
of Bosnian Serbian rapists reveal a mixture of all these goals. 72
69. See Haitian Women's Advocacy Network, et al., Communication Respecting the
Violations of Human Rights of Haitian Women, submitted to the Inter-American
Commission of Human Rights (October 1994) (on file with author); HUMAN RIGHTS
WATCH, NATIONAL COALmON FOR HAmAN REFuGEES, RAPE IN HAm: A WEAPON OF
TERROR (July 1994) (on file with author); The Situation of Democracy and Human Rights
in Haiti, U.N. GAOR, 48th Sess., Agenda Item 31, U.N. Doc. Al48/5321Add.3 (1994).
70. Testimony of Bok Dong Kim before the Global Tribunal on Violations of Women's
Human Rights, NGO Parallel Activities, 1993 World Conference on Human Rights, Vienna,
June 15, 1993. See also Hearings before the United Nations Secretary-General (Feb. 25,
1993) (testimony of Hyo-chai Lee, MA, Soon-Kum Park, and Chung-Ok, MFA, Korean
Council for the Women Drafted for Military Sexual Service in Japan); Lourdes Sajor,
Women in Armed Conflict Situations, MAVI1993IWP.l (Sept. 21, 1993) (article prepared
for Expert Group Meeting on Measures to Eradicate Violence against Women, U.N.
Division for the Advancement of Women) (on file with author).
71. BROWNMILLER, supra note 1, at 92-93.
72. See generally MASS RAPE, supra note 29.
Summer 1994]
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261
At the same time, some aspects of the genocidal rape practiced in
Bosnia are particularly tailored to the goals of driving women from their
homes or destroying their possibility of reproducing within and "for" their
community. When women are raped by men familiar to them, their trauma
is exacerbated, as is their impulse and need to flee the community because
trust and safety are no longer possible. 73 This is particularly true in
Bosnia, where war and propaganda have made enemies out of neighbors.
The second and more distinctive feature of genocidal rape is the focus
on women as reproductive vessels. The explicit and common threat to
make Muslim women bear "Serbian babies" justifies repetitive rape and
aggravates a woman's terror and potential unacceptability to her community. Bengali women were raped to lighten their race and produce a class of
outcast mothers and children. Enslaved African-American women in the
southern United States were raped to produce babies, bartered, sold, and
used as property. 74 While intentional impregnation is properly treated as
a separate offense, it should also be noted that pregnancy, and the fear of
pregnancy, is an often unrecognized, yet common consequence and added
harm of rape. In situations where women are raped repeatedly, most fertile
women will become pregnant at some point. When the United States Navy
took over Saipan, for example, one observer reports that virtually all the
women, who had been enslaved as comfort women for the Japanese army,
were pregnant. 75 This appears to be true today for Rwandan women,
together with the threat and reality of infection with HIV.
These distinctive characteristics do not therefore place genocidal rape
in a class by itself; nor do they reflect the full range of atrocities, losses,
and suffering that the combination of rape and ethnic cleansing inflicts.
The women victims and survivors in Bosnia are being subjected to crimes
against humanity based on both ethnicity and religion, and gender. It is
critical to recognize both and to acknowledge that the intersection of ethnic
and gender violence has its own particular characteristics.
This brings me to the fourth concern: the complete failure of the
United Nations and the international community in general to recognize that
persecution based on gender must be recognized as its own category of
crimes against humanity. The crystallization of the concept of crimes
against humanity in the wake of the Holocaust has meant that it is
popularly associated with religious and ethnic genocide. But the concept
is a broader one, and the categories of persecution are explicitly open
ended, capable of expanding to embrace new understandings of persecution.
73. See id.
74. ANGELA Y. DAVIS, WOMEN, RACE AND CLASS 172 (1983).
75. Author's personal conversation with D.B., April 1993.
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Historically, gender has not been viewed as a relevant category of
victimization. The frequency of mass rape and the absence of sanctions are
sufficient evidence. In the Holocaust, gender persecutions - the rape and
forced prostitution of women, Aryan as well as Jewish, as well as the
extermination of gay people - were obscured. 76 Gender combined with
nationalistic superiority and hatred in the Japanese Anny's purposeful
sexual enslavement of girls and young women as "comfort women." The
growing involuntary trafficking of women presents a clearer case today.
Without recognition of gender as a basis for persecution, sexual slavery
would escape condemnation as a crime against humanity where it was
shown that nationality or ethnicity was incidental.
The absence of gender as a basis for persecution is not, however,
peculiar to the concept of crimes against humanity. A parallel problem
exists in the international standards for political asylum, which require a
well-founded fear of persecution, but do not explicitly recognize gender as
a source of persecution. 77 The expansion of the concept of crimes against
humanity explicitly to include gender is thus part of the broader movement
to end the historical invisibility of gender violence as a humanitarian and
human rights violation. The recognition of "social" and "cultural"
persecution by the 1954 Draft Code of Offenses exemplifies this principle
and should encompass gender. 78
Moreover, the particular goals and defining aspects of genocidal rape
do not detract from, but rather elucidate, the nature of rape as a crime of
gender as well as ethnicity. Women are targets not simply because they
"belong to" the enemy, but precisely because they keep the civilian
population functioning and are essential to its continuity. They are targets
because they, too, are the enemy - because of their power and vulnerability as women, including their sexual and reproductive power. They are
targets because of hatred of their power as women, and because of endemic
76. See BROWNMILLER, supra note 1, at 48-78, for a discussion of the unrecognized
sexual violence against women on the part of Allied as well as Axis forces. See also Erwin
J. Haeberle, Swastika, Pink Triangle, and Yellow Star: The Destruction of Sexology and the
Persecution of Homosexuals in Nazi Germany, in HIDDEN FROM HISTORY: RECLAIMING
THE GAY AND LESBIAN PAST 365-79 (Martin Duberman, et al. eds., 1990) (noting the
gender aspect of Nazi attacks on homosexuals reflected in the use of the pink triangle and
charges of emasculation).
77. The U.N. Convention relating to the Status of Refugees recognizes persecution based
on race, religion, nationality, membership in a particular social group, or political opinion.
See Office of the U.N. High Commissioner for Refugees, Handbook on Procedures and
Criteria for Determining Refugee Status Under the 1951 Convention and 1967 Protocol
Relating to the Status of Refugees, U.N. Doc. HCRIPRO/4 (1979). The "social group"
category is currently being expanded to encompass gender claims, but this is not enough.
See Pamela Goldberg & Nancy Kelly, International Human Rights and Violence against
Women, 6 HARV. HUM. RTS. J. 195, 206-08 (1993).
78. See Draft Code, supra note 64.
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SURFACING GENDER
263
objectification of women, and because rape embodies male domination and
female subordination.
The crime of forced impregnation, central to genocidal rape, also
elucidates the gender component. Since under patriarchy women are
viewed as little more than vessels for childbearing, involuntary pregnancy
is commonly viewed as natural, divinely ordained perhaps, or simply an
unquestioned fact of life. As a result, the risk of pregnancy in all rape is
treated not as an offense, but as a sequela. Forced pregnancy has drawn
condemnation only when it reflects an intent to harm the victimized race.
In Bosnia, the taunt that Muslim women will bear Serbian babies is not
simply an ethnic harm, particularly in light of the prevalence of ethnically
mixed families. When examined through a feminist lens, forced pregnancy
appears as an assault on the reproductive self-determination of women; it
expresses the desire to mark the rape and rapist upon the woman's body
and upon the woman's life.
Finally, the fact that the rape of women is also designed to humiliate
the men or destroy "the enemy" itself reflects the fundamental
objectification of women. When a woman is attacked because she
"belongs" to the enemy or because of her relationship to male targets,
raping her is a means to humiliate, indeed, to feminize the men who are
powerless to protect her. As such she is also being attacked on the basis
of gender, as man's property, lacking in separate identity, dehumanized and
subservient. In this common scenario, women are the target of abuse at the
same time as their subjectivity is completely denied. The persistent failure
to acknowledge the gender dimension of rape and sexual persecution is thus
a most effective means of perpetuating it.
In sum, the international attention focused on Bosnia challenges the
world squarely to recognize sexual violence against women in war as
torture. Moreover, it is not enough for rape to be viewed as a crime
against humanity when it is the vehicle of some other form of persecution
even though gender is, in fact, usually intertwined. Sexual violence against
women on a mass scale must also be recognized as a crime against
humanity because it is invariably a persecution based on gender, sometimes
exclusively or primarily so. The recent recognition in international human
rights law of gender violence as a form of discrimination against women
as well as a violation of women's fundamental human rights supports this
expansion of the persecution bases of crimes against humanity. 79 This is
79. See, e.g., Committee to End Discrimination Against Women, Recommendation No. 19,
U.N. Convention on the Elimination of all Forms of Discrimination Against Women, 11th
Sess., U.N. Doc. CEDAW/CI19921L.lIAdd. 15 (1992). "Gender-based violence ... is
discrimination within the meaning of article 1 of the convention." It defines violence
against women as "violence that is directed against a woman because she is a woman or
which affects women disproportionately. It includes acts that inflict physical, mental or
264
HASTINGS WOMEN'S LAW JOURNAL
[Vol. 5:2
essential if the women of Bosnia are to be understood as full subjects and
not simply as objects in this terrible victimization and if the international
attention focused on Bosnia is to have meaning for women sUbjected to
widespread rape in other parts of the world.
CONCLUSION
Given the formidable pressure being brought to bear by women
survivors and the women's movement globally, it may well be that some
men will be indicted, subject to international warrants, or even tried before
the International Tribunal or national courts, at least if impunity is not
again the price of peace. This would be precedent setting in international
law and it would hopefully offer symbolic vindication to the untold
numbers of women this war has rendered homeless in so many senses.
Unless the gender dimension of rape in war is recognized, however, it may
mean little for women where rape is not also a tool of genocide. 80
Emphasis on the gender dimension of rape in war is critical not only
to surfacing women as full subjects of sexual violence in war, but also to
recognizing the atrocity of rape in the time called peace. When women
charge rape in war they are more likely to be believed, because their status
as enemy, or at least as "the enemy's," is recognized and because rape in
war is seen as a product of exceptional circumstances. When women
charge rape in everyday life, however, they are disbelieved largely because
the ubiquitous war against women is denied.
From a feminist human rights perspective, gender violence has escaped
sanction because it has not been viewed as violence and because the publicprivate dichotomy has shielded such violence in its most common and
private formsY The recognition of rape as a war crime is thus a critical
sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty."
Id. Vienna Declaration, supra note 45, at paras. 36-44. See also Declaration to Eliminate
Violence Against Women, G.A. Res. 104, U.N. GAOR, 48th Sess., Supp. No. 49, U.N. Doc.
A/RES/481104 (1994).
80. Moreover, as we discussed in this volume in Affecting the Rules for the Prosecution
of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for
the Former Yugoslavia: A Feminist Proposal and Critique, 5 HASTINGS WOMEN'S L.J. 171
(1994), the effective prosecution of rape depends on "engendering" the Tribunal process in
a number of ways: equal employment of women, including a substantial cadre of women
and men with experience working with women traumatized by sexual violence; gender
training of all personnel; and effective enforcement of procedural and evidentiary rules to
prohibit prejudicial and unfair harassment and retraumatization of witnesses while preserving
the defendant's legitimate rights to a fair trial. Beyond that, women (as well as men)
survivors and victims of these atrocities deserve more than symbolic recognition, they
deserve a commitment from the United Nations, through the Tribunal process and otherwise,
,
to provide compensation, albeit for the incompensable.
81. See, e.g., Charlotte Bunch, Women's Rights as Human Rights.l Toward a Revision
of Human Rights, 12 HUM. RTS. Q. 486 (1990); Rhonda Cope lon, Intimate Terror:
Understanding Domestic Violence as Torture, and Celina Romany, State Responsibility Goes
22
I
Summer 1994]
SURFACING GENDER
265
step toward understanding rape as violence. The next step is to recognize
that rape in the presence of war or the imprimatur of the state is not
necessarily more brutal, relentless, or dehumanizing than the private rapes
in the so-called time of peace.
This is not to say that rape is identical in the two contexts. There are
differences here, just as there are differences between rape for the purpose
of genocide and rape for the purpose of booty. War tends to intensify the
brutality, repetitiveness, public spectacle, and likelihood of rape. War
diminishes sensitivity to human suffering and intensifies men's sense of
entitlement, superiority, avidity, and social license to rape. War and armed
repression carried out against civil society attacks whatever security, social
supports, and routine existed for women in daily life. They rain terror from
many directions and force many into hiding and flight.
But the line between war and "peace" is not so sharp. Gang rape in
civilian life shares the repetitive, gleeful, and public character of rape in
war. Marital rape, the most private of all, shares some of the particular
characteristics of genocidal rape in Bosnia: it is repetitive, brutal, and
exacerbated by betrayal; it assaults a woman's reproductive autonomy, may
force her into hiding, to flee her home and community, and is widely
treated as legitimate by law and custom. The lasting terror and shame of
rape may change the psychological as well as physical landscape of a
woman's life. Violation by a state official or enemy soldier is not
necessarily more devastating than violation by an intimate. 82
Every rape is a grave violation of physical and mental integrity. Every
rape has the potential to profoundly debilitate, to render the woman
homeless in her own body and destroy her sense of security in the world.
Every rape is an expression of male domination and misogyny, a vehicle
of terrorizing and subordinating women. Like torture, rape takes many
forms, occurs in many contexts, and has different repercussions for
different victims. Every rape is multidimensional, but not incomparable.
'Private': A Feminist Critique of the Public/Private Distinction in International Human
Rights Law, both in THE HUMAN RIGHTS OF WOMEN: INTERNATIONAL AND NATIONAL
PERSPECTIVES (Rebecca J. Cook ed., 1994).
82. See HERMAN, supra note 42; Copelon, supra note 27.
266
HASTINGS WOMEN'S LAW JOURNAL
[Vol. 5:2
The rape of women in the former Yugoslavia challenges the world to
refuse impunity to atrocity and to resist the powerful forces that would
make the mass rape of Muslim women in Bosnia exceptional and thereby
restrict its meaning for women raped in different contexts of war, official
repression, and "peace." It thus demands recognition of situational
differences without losing sight of the commonalities. To fail to make
distinctions flattens reality; and to rank the egregious demeans it. 83
83. As the Tribunal proceeds, you can write to United Nations Secretary-General Boutros
Boutros-Ghali, to your country's ambassador to the United Nations, and to the judges and
Chief Prosecutor of the Tribunal, which is situated at the Peace Palace in The Hague. The
two women judges on the International Tribunal are Gabrielle Kirk-MacDonald (United
States) and Elizabeth Odio-Benito (Costa Rica); the Chief Prosecutor is Justice Richard
Goldstone.
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